Commissioner Frank Iacobucci Issues
Key Ruling on Inquiry’s Proceedings

Ottawa, May 31, 2007 – The Honourable Frank Iacobucci, the Commissioner appointed to conduct the Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin, today released his ruling concerning the manner in which the Internal Inquiry will proceed.

The ruling addresses a series of questions relating to the Inquiry’s Terms of Reference and draft Rules of Procedure and Practice on which the Commissioner invited submissions from the individuals and organizations granted an opportunity to participate in the Inquiry.  These submissions were made at a public hearing last month.

Background

The Inquiry was established following the recommendation in the Arar Commission Report calling for a review of the cases of Messrs. Almalki, Elmaati and Nureddin through a different process than a full-scale public inquiry.  The Report observed that there are more appropriate ways to investigate and report on cases where national security confidentiality must play a prominent role.  The Inquiry’s Terms of Reference specifically require that the Commissioner take all steps necessary to ensure that the Inquiry is conducted in private, while authorizing him to conduct specific portions of the Inquiry in public if he is satisfied that it is essential to ensure the effective conduct of the Inquiry.

Mistreatment and torture

One of the questions that the Terms of Reference mandate the Commissioner to determine is whether any mistreatment of Messrs. Almalki, Elmaati and Nureddin in Syria or Egypt resulted, directly or indirectly, from actions of Canadian officials.  The Commissioner asked the participants for submissions on the meaning of “any mistreatment” and on whether it is necessary, in order for the Commissioner to carry out his mandate, for him to decide whether, and the extent to which, Mr. Almalki, Mr. Elmaati and Mr. Nureddin were tortured in Syria and Egypt.

The Commissioner ruled that the term “any mistreatment” should be interpreted broadly.  He also ruled that “it is proper and appropriate for the Inquiry to ascertain whether the three individuals were tortured as a specific aspect of their alleged mistreatment” (para. 66).  Making this determination, he concluded, is necessary in order to assess whether there were deficiencies in the actions of Canadian officials.  It is also important from the standpoint of the public interest (para. 67).

Conduct of the Inquiry

The Commissioner also asked for submissions on what the Terms of Reference mean in requiring him to take all steps necessary to ensure that the Inquiry is conducted in private, and on how he should exercise his authority to conduct specific portions of the Inquiry in public if he is satisfied that doing so is essential to ensure the effective conduct of the Inquiry. 

The Commissioner ruled, taking into account the requirements of the Terms of Reference, the need to protect national security confidentiality and considerations of workability and practicality, that the formal hearings conducted as part of the Inquiry will as a general rule be conducted in private, a term that he interpreted to mean, in the context of the Inquiry, in camera and ex parte (para. 72).  This would among other things avoid disputes over what information can and cannot be disclosed, that “as experience in the Arar Inquiry demonstrated, cause significant delay and complexity”.  The Commissioner stated, “It would serve no one’s interest if the process of the Inquiry impeded it from an expeditious determination of the questions that I have been mandated to pursue“ (para. 60).

However, the Commissioner emphasized that he “will be sensitive to the potential of overbroad assertions of national security confidentiality and not let that become a shield to prevent the Inquiry from doing the necessary work to fulfill its mandate” (para. 45).  He noted that the Government is providing the Inquiry with all relevant documents without any editing for national security confidentiality, that the Inquiry has the power to subpoena witnesses and documents to obtain relevant information and that “the requirement in the Terms of Reference for a report on the completion of the work of the Inquiry operates to ensure that the Commissioner is accountable to review all the relevant evidence and to arrive at conclusions that are based on that evidence in order to successfully complete the role that has been assigned to the Inquiry” (para. 46).  He also stated that his determinations to conduct public hearings “will be ultimately a discretionary decision, to be made on a case-by-case basis, influenced by the need for a blending of efficiency and transparency dictated by the circumstances and the context” (para. 72).

Participation

The Commissioner also asked for submissions on how individuals and organizations and individuals granted status as participants could effectively participate in the work of the Inquiry if hearings were held in private.  The Commissioner’s ruling instructs Inquiry counsel, as was done in the Arar Inquiry, to maintain regular contact with counsel for the participants, especially counsel for Messrs. Almalki, Elmaati and Nureddin, and invites and encourages counsel for the three individuals, in particular, to suggest questions and lines of inquiry to pursue in interviews and hearings that are held in private.  This will help ensure, the Commissioner stated, that “we are not leaving any stone unturned as we pursue our mandate” (para. 72).

The Commissioner concluded that it would not be workable to accept the suggestion of counsel for the three individuals that they be security-cleared and be permitted to attend any private hearing on giving an undertaking not to disclose any sensitive information to their clients.  The Commissioner added, “I am not convinced as a practical matter that this arrangement would assist Messrs. Almalki, Elmaati and Nureddin or the Inquiry in carrying out its work” (para 58).

While stressing the need to carry out the work of the Inquiry effectively and expeditiously, the Commissioner also underlined the need for flexibility, and stated that the ruling should not be seen as cast in stone, but that he would be prepared to modify it if a fuller understanding of the facts and background information calls for modification.  He thanked counsel for the participants and intervenors for their submissions on the questions he had posed.

The Inquiry is completing the process of reviewing the thousands of documents that have been produced to it.  It intends to begin interviewing officials and former officials from the Canadian Security Intelligence Service, the Royal Canadian Mounted Police and the Department of Foreign Affairs and International Trade in June.  John Laskin, lead counsel to the Inquiry, stated:  “As the Inquiry proceeds to the next phase, we look forward to continuing to work closely with counsel for the participants, especially counsel for the three individuals, in helping the Commissioner get to the bottom of what occurred.”

The complete text of the ruling is available on the Inquiry’s website, www.iacobucciinquiry.ca.

Established under Part I of the Inquiries Act by the Minister of Public Safety, the Commissioner's mandate is to determine whether the detention of these three individuals in Syria or Egypt resulted from actions of Canadian officials, particularly in relation to the sharing of information with foreign countries; those  actions or the actions of Canadian consular officials were deficient in these cases and whether any mistreatment of these three individuals in Syria or Egypt resulted from deficiencies in the actions of Canadian officials.

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